MPL 2 section 11

[John Cowan]

Schmitz, Patrice-Emmanuel scripsit:

> This is very interesting! It looks like the debate between
> the "pragmatist" and the lawyer (or "legalist") that is
> simulated in the EOLE paper on EUPL interoperability (page 7):
> http://www.eolevent.eu/sites/default/files/EUPL%20Interoperability_0.pdf

That's a very different debate, where Lawyer is a stickler for the law
and Pragmatist wants to ignore the fussy parts.  In the case at hand,
Lawyer (Larry) is saying that there is no such thing as strong copyleft
as a matter of U.S. copyright law, and Pragmatist (me) is saying that
this is probably true, but one should act as if there were, because
(a) violating a strong copyleft is bad for one's reputation, and (b)
successfully defending oneself from legal threats is a Pyrrhic victory
(for clients if not lawyers).

To summarize Larry's argument:

1) He holds that an executable combining multiple sources has the same
legal status as the tarball from which it is built, just as a single
compiled binary *is* the source rather than a derivative of the source
(which is settled law).

2) It is evident that a tarball is a collective rather than a joint
work: the individual authors have no intention to merge the product of
their efforts into a single work.  Rather, that intention is supplied
by the person who creates the tarball, who is like a magazine editor
or anthologist.  The fact that this person may also create some of the
individual sources does not matter (as a magazine editor may contribute
an editorial to his magazine).

3) U.S. copyright protection over collective works extends only to
arrangement (mechanical, so no U.S. copyright) and selection (functional,
so no U.S. copyright).

4) Therefore anyone can make such a work as long as they have the legal
right to distribute the individual sources, which all OSS licenses
guarantee.  The GPL's attempt to prevent it as a breach of copyright is
therefore unenforceable as a matter of law.

(I may have gotten some details wrong, but this is how I understand it.)

There is a similar Lawyer/Pragmatist argument over the ability of a
project leader to unilaterally change the copyright on a truly joint work.
Lawyer (Cathy Olanich Raymond) says that any joint author can license a
joint work on any terms he likes, provided they are responsible to the
other joint authors for lost profits (in this case, $0).  Pragmatist (me
and others) replies that this should never be done even so, using the
same arguments as above.

-- 
When I'm stuck in something boring              John Cowan
where reading would be impossible or            (who loves Asimov too)
rude, I often set up math problems for          cowan at ccil.org
myself and solve them as a way to pass          http://www.ccil.org/~cowan
the time.      --John Jenkins